Judges Opinions, — June 7, 2023 10:51 — 0 Comments

Commonwealth of Pennsylvania, v. Robert Kennedy

Commonwealth of Pennsylvania, v. Robert Kennedy

 

Criminal Action-Constitutional Law-Search and Seizure-Traffic Stop-Reasonable Suspicion-Investigative Detention-Random Vehicle License Plate Number Query-Suspended Operator’s Privilege of Owner

 

Robert Kennedy (“Defendant”) was charged with Driving While Under a Driving Under the Influence Suspended License after a law enforcement officer queried the license plate number of the vehicle he was operating even though the vehicle was being operated lawfully and the law enforcement officer perceived no problems with the vehicle itself and effectuated a traffic stop because the operator’s privileges of the registered owner of the vehicle that was not Defendant were suspended.  Defendant filed a Motion for Suppression of Evidence on the basis that the law enforcement officer did not possess reasonable suspicion to query the license plate number that led to the traffic stop.

 

  1. A law enforcement officer is able to query the license plate of a vehicle observed without probable cause or reasonable suspicion of wrongdoing.

 

  1. While the law enforcement officer determined that the vehicle was registered to an individual with a suspended operator’s privilege, he failed to verify that this individual actually was operating the vehicle before effectuating the traffic stop, which is fatal to the legality of the traffic stop.

 

  1. Under Pennsylvania law, a traffic stop is an investigative detention that requires reasonable suspicion of wrongdoing, not a mere encounter.

 

  1. Unless and until a law enforcement officer is satisfied that the description of the operator of the vehicle is consistent with the description of the individual to whom the vehicle is registered who has a suspended operator’s privilege, the mere fact that a vehicle is registered to an individual with a suspended operator’s privilege does not give the officer reasonable suspicion to stop the vehicle.

 

L.C.C.C.P. No. CP-38-CR-0001105-2021, Opinion by Bradford H. Charles, Judge, June 9, 2022.

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1105-2021

  1. :       

                                                                   :

ROBERT KENNEDY                                 :

:

ORDER OF COURT

 

 

AND NOW, this 9th day of June, 2022, upon consideration of the Defendant’s Pre-Trial Motion and in accordance with the attached Opinion, the Pre-Trial Motion of the Defendant is GRANTED.  We will leave the above-referenced case on the Trial List in case the Commonwealth has additional information unknown to us that was not predicated upon the traffic stop conducted by Officer Adam Rusz on July 7, 2021.  The Defendant is directed to appear at the Criminal Call of the List scheduled for July 5, 2022.  He is also directed to appear for the first day of Criminal Trials scheduled to take place on July 18, 2022.   The Commonwealth is reminded that it has thirty (30) days from today’s date in which to file an appeal of this decision.

 

 

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/pmd

Cc:    Court Administration (order only)

Courtney McMonagle, Esq.//District Attorney’s Office

Jonathan Shelton, Esq.// 342 N. Queen Street, Lancaster PA 17603

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

 

COMMONWEALTH OF                             : 

PENNSYLVANIA                                       :                                                                                                                            :        NO. CP-38-CR-1105-2021

  1. :       

                                                                   :

ROBERT KENNEDY                                 :

:

APPEARANCES

 

Courtney McMonagle, Esquire                        For Commonwealth of

DISTRICT ATTORNEY                                       Pennsylvania

 

Jonathan Shelton, Esquire                              For Robert Kennedy

        

OPINION BY CHARLES, J., June 9, 2022

 

This case implicates the question of when police can lawfully query a license plate on their in-vehicle computer system.  The Commonwealth asserts that police should be afforded unfettered discretion to insert any license number into a computer system in order to ascertain if something is happening that could implicate criminality.  The Defendant responds that providing unfettered discretion to police would create a risk of mischief that is inconsistent with notions of equal protection and due process.  We are conflicted about this issue.  However, because we believe that reasonable suspicion remains the benchmark by which traffic stops need to be judged, and because we believe the police possessed no such suspicion, we will be ruling today in favor of the Defendant.

 

  1. FACTS

On July 7, 2021, Officer Adam Rusz of the Lebanon City Police Department observed a red vehicle on the 500 block of North Twelfth Street in the City of Lebanon.  The vehicle was being operated lawfully and Officer Rusz perceived no problems or malfunctions with the vehicle itself.  Nevertheless, Office Rusz decided without any indicia of probable cause or reasonable suspicion to insert the license in the computer affixed to his police cruiser.

Officer Rusz learned that the red vehicle was registered to Dusown Kennedy, a black female who had a suspended driver’s license.  Although Officer Rusz could not see who was operating the vehicle, he effectuated a traffic stop because the vehicle was registered to someone who had her license suspended.

When Officer Rusz approached the vehicle he had stopped, he saw that the vehicle was being operated by a male.  He immediately recognized the male as Robert Kennedy.  Officer Rusz was familiar with Mr. Kennedy because he had previously arrested him.  Officer Rusz asked Mr. Kennedy to provide a license and registration for the vehicle.  Mr. Kennedy could not do so.

As a result of the encounter between Officer Rusz and the Defendant, the Defendant was charged with Driving While Under a DUI Suspended License.  Through his counsel, the Defendant filed a Motion to Suppress on November 28, 2021.  We conducted a Factual Hearing on April 13, 2022.  Following the Factual Hearing, we solicited and received briefs from both parties.  We now issue this Opinion to address the Defendant’s Motion to Suppress.

 

  1. DISCUSSION

For the third time in one year, we are confronted with the issue of whether or how police should support a decision to insert a license number in a computer system.  As we articulated in the case of Commonwealth v. Lisa Ann Kanzler, Leb.Co. CP-38-CR-242-2020 (August 13, 2020), we are conflicted by this issue.  At the risk of thinking out loud, we will articulate some of the concerns that we have on both sides of this issue.

The key consideration favoring the Commonwealth is the fact that license plates are conspicuously located on every vehicle in plain view of every other motorist and pedestrian in the vicinity.  Moreover, when a vehicle is in motion, it is almost always located on a public highway or publically-accessed parking lot over which the driver has no expectation of privacy.  Moreover, the intrusion created by a computer search of a license plate number is minimal.  In fact, on most occasions when a license is run on a random basis, the driver will likely not even know that the computer query had occurred.

On the other hand, affording unfettered discretion to police with respect to computer searches of license plate information could incentivize investigations predicated upon grounds having nothing to do with suspicious or aberrant behavior.  For example, in the case of Commonwealth v. Kanzler, an attractive young woman claimed that police targeted her with a license plate computer search because she was “driving while blonde.”  Although we ultimately determined that the woman’s less than stellar driving justified a police stop, we were troubled by the notion that police could target licenses on vehicles based entirely upon the gender, skin color or attractiveness of the driver.  Sanctioning such “targeting” would ultimately have the effect of treating one class of motorists different than another.  Such a result is viscerally repugnant to the notion that everyone must be treated equally under the law.

How do we reconcile the considerations outlined above?  The preference of this Court would be to impose some sort of objective requirement upon police to explain how or why a license plate was targeted for further investigation.  However, this Court does not make the law, nor do we have the authority or desire to usurp our Appellate Courts’ authority to create common law principles that apply statewide.

In this case, precedent exists that is almost directly on point with the factual scenario now before this Court.  In Commonwealth v. Bolton, 831 A.2d 737 (Pa. Super. 2003), Appellant was stopped after a police officer ran the registration of the vehicle through the mobile NCIC device in his police vehicle.  Upon determining that the vehicle, though registered, lacked the proper financial responsibility required by the Motor Vehicle Code, the officer stopped Appellant and further discovered that Appellant was operating the vehicle on a suspended license.  Appellant argued “that the stop was unconstitutional because the charging officer was not engaged in a systematic program of checking vehicles or drivers.”  Appellant cited no authority to support his contention that a charging officer must have some level of suspicion to run a license plate through the NCIC computer.  In reviewing case law, Pennsylvania’s Superior Court found no support for Appellants contention and determined there was no need for an officer to possess a level of suspicion to check a license plate which was clearly in plain view.  The Court stated: “…we fail to see the need for some level of suspicion to check a license plate which is clearly in plain view.” Id at pg. 737.   As such, the vehicle stop leading to Appellant’s citations was appropriate.[1]

We are constrained by Bolton to hold that Officer Rusz could query the license plate of the vehicle he observed that was operated by the Defendant.  So that we are clear, there was absolutely no probable cause or reasonable suspicion of wrong-doing that supported Officer Rusz’ decision to query the license plate.  However, as outlined above, Officer Rusz did not need such suspicion under the current state of Pennsylvania law.

Our analysis does not end with a recognition that Officer Rusz could query a license plate with relative impunity.  In this case, Officer Rusz effectuated a traffic stop without being able to see who was driving the vehicle.  In other words, Officer Rusz determined that the vehicle in question was registered to a female who had a suspended license, but he did not verify that a female was actually driving the vehicle before he effectuated the stop.  In the opinion of this Court, that omission was fatal to the legality of Officer Rusz’ traffic stop.

The case of Kansas v. Glover, 140 S.Ct. 1183, 200 L.Ed. 2d 412 (U.S. 2020) is instructive.  In Glover, a deputy sheriff in Kansas conducted random license plate computer checks.  One of the vehicles he queried was registered to Charles Glover, whose driver’s license had been suspended.  Because of the suspended license, the deputy effectuated a traffic stop.  Mr. Glover challenged the stop.  In a rare 8-1 opinion, the United States Supreme Court upheld the validity of the stop.  However, in doing so, the Supreme Court emphasized that the deputy had personally observed the driver and had determined that the driver’s description matched the computer information about the individual whose license had been suspended.  Reading the Supreme Court’s decision leaves no doubt about the importance of the deputy’s personal observation of the driver.

In this case, Officer Rusz never observed the driver of the vehicle he stopped.  He had no idea if the driver was male or female.  He had no idea if the driver was African-American or Caucasian.  He had no idea if the driver was young or old.  In short, he did not have any information to verify that the driver was or could have been the same individual who had a suspended license.

Clearly, Officer Rusz failed to determine that the operator of the vehicle in question had characteristics consistent with the computer-generated information about the license-suspended person to whom the vehicle was registered.  Because of this, Officer Rusz lacked reasonable suspicion of wrong-doing needed to effectuate a traffic stop.  To the extent that the Commonwealth argues that Officer Rusz was merely initiating a mere encounter, we reject such an argument.  Officer Rusz conducted a traffic stop.  Under Pennsylvania law, that is by definition an investigative detention.  See, e.g. Commonwealth v. Douglass, 539 A.2d 412, 420 (Pa. Super. 1998)Because that detention was unsupported by any reasonable suspicion, it is fatally flawed.

So that we are clear, we have no concerns about how Officer Rusz acted once he observed the Defendant inside the vehicle he stopped.  Officer Rusz knew the Defendant personally.  He knew that the vehicle was not registered to the Defendant.  At that point, Officer Rusz had the ability to conduct inquiry about whether the Defendant was lawfully in possession of and driving said vehicle.  Our concern in this case stems from Officer Rusz’ decision to conduct a computer query without any degree of suspicion.  Although we moved beyond that concern based upon Bolton, we could not ignore the fact that Officer Rusz conducted a traffic stop without any physical observation of who was driving the vehicle.  In the opinion of this Court, the mere fact that a vehicle was registered to a person with a suspended license does not give a police officer the ability to stop that vehicle until or unless the officer is satisfied that the description of the driver is consistent with the description of the individual who had a suspended license.

For reasons outlined above, we will grant the Defendant’s Motion to Suppress.  An Order to effectuate this decision will be entered today’s date.

 

 

 

 

 

 

[1] The principle articulated in Bolton was re-affirmed more recently in Commonwealth v. Stephens, 2019 W.L.6188552 (Pa. Super. 2019) (Officer not required to possess any level of suspicion before running a vehicle’s information through his in-car computer.) and Commonwealth v. Batch, 2020 W.L. 9170506 (Pa. Super. 2020) (No suspicion needed for an officer to follow a vehicle close enough to read its license plate number.)  While both Stephens and Batch were non-precedential Opinions, we note them as reflecting the discernment of two separate Superior Court panels.

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